犯罪故意:立法比较与学理阐释

Crime Intent: Legislative Comparison and Theoretical Explanation

我国刑法采取不区分构成要件故意与罪责故意的单一的实质故意概念的立场,不存在三阶层赖以存在的犯罪论体系之基础。《刑法》总则第14条第1款明文规定了"故意"的概念内涵,并且将"社会危害性认识"作为成立"故意"的条件,这与不定义"故意"概念的德国刑法、日本刑法等形成了鲜明的对比,与德国、日本刑法学理上给"故意"所下的定义存在较大的差距,也不同于规定单一的实质故意概念的俄罗斯刑法。认为我国刑法可以与三阶层体系完美契合的观点,明显忽视了我国刑法规定单一的实质故意概念这一规范障碍,违背了罪刑法定原则。而且,双重的形式故意概念不具有合理性,它会导致一些案件处理的复杂化。无论是出于逻辑自洽还是功能自足的考虑,我国采取中国特色的单一的实质故意概念,不承认"故意的双重地位",都是一种明智的选择。

The Criminal Law of China takes the standpoint of single substantive intent, so do not distinguish between constitutive intent and crime intent, there is no basis for the criminal theory system that rely on the three classes. The 1st section of ＂Criminal Law＂ 14 th has expressly provided the conception of ＂intent＂ and taken ＂social harmfulness cognition＂ as the condition of defining the ＂intent＂. This has become a sharp contrast with German and Japanese criminal laws which do not define the conception of ＂intent＂, there is a big gap with the definition of ＂intent＂ in German and Japanese theory of criminal law, it is also different from Russian criminal law which stipulates the conception of single substantive intent. The view that the Criminal Law of China can perfectly fit with the three classes system, it has ignored the standard obstacle that the Criminal Law of China has stipulated the conception of single substantive intent, the view also has violated the principle of legality. Moreover, the dual concept of formal intent is not reasonable, it can lead to the complex of some cases. Whether it is for logical self-consistency or functional self-sufficiency, it is a wise choice to adopt the single concept of substantive intent with Chinese characteristics, and not to recognize ＂the dual position of intent＂.